COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Alston and Senior Judge Haley
PUBLISHED
Argued at Richmond, Virginia
MELANIE LYNN RHODES
OPINION BY
v. Record No. 0263-16-2 JUDGE RANDOLPH A. BEALES
NOVEMBER 8, 2016
DELMAR LANG AND SUSAN LANG
FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
Kimberly S. White, Judge
Rick A. Friedman, II (Kimberley L. Fitzgerald; Sarah J. Conner;
Friedman Law Firm, P.C., on brief), for appellant.
No brief or argument for appellees or guardian ad litem.
Melanie Lynn Rhodes (“mother”) appeals the circuit court’s January 13, 2016 final
visitation order. The circuit court’s order modified an Ohio visitation order that had previously
awarded visitation with mother’s four minor children to Delmar and Susan Lang, the children’s
paternal grandparents. Mother presents two assignments of error – both of which assert that the
circuit court erred “by failing to apply Virginia’s ‘actual harm’ standard on a motion to amend”
the paternal grandparents’ visitation with the children. For the following reasons, we affirm the
circuit court.1
I. BACKGROUND
Under settled principles of appellate review, we view the evidence in the light most
favorable to the grandparents, as the party prevailing below, Chretien v. Chretien, 53 Va. App.
1
Mother has withdrawn her third assignment of error: “The trial Court committed
reversible error in ruling that visitation with the Appellees was in the best interest of the minor
children when there was no evidence presented that the children would benefit from visitation
with Appellees.”
200, 202, 670 S.E.2d 45, 46 (2008), and we grant to the Langs “all reasonable inferences fairly
deducible therefrom,” Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372
(1999). So viewed, mother married Kyle Lang (“father”) on June 1, 2002. Mother and father
had four children together in Ohio during the course of their marriage. Mother and father
divorced on July 20, 2010. Father later died unexpectedly in a farming accident on May 20,
2011.
After the divorce but prior to their son’s death, the Langs continued to have weekly
contact with the children. After father’s death, however, the relationship between mother and the
Langs began to deteriorate. Eventually, mother sent the Langs a “No Trespass Letter” dated
November 30, 2011. The letter informed the Langs that they were prohibited from entering the
farmhouse property and directed the Langs not to communicate with mother in any fashion.
After she sent that letter, mother prevented the Langs from having any visitation with their late
son’s children. The Langs eventually filed a complaint on June 11, 2012 in Ohio requesting
visitation with their grandchildren.
The Langs’ complaint for visitation was heard by a magistrate in Ohio. The Ohio
magistrate appointed a guardian ad litem to represent the interests of the minor children. The
guardian ad litem recommended that the Langs have visitation with their grandchildren. The
magistrate’s decision was entered as an order on June 6, 2013, and granted the Langs visitation
once a month for four hours in mother’s home for the first six months. After six months, the
visits were to take place in the Langs’ home or at a place of their choosing. The order
emphasized that “the primary purpose of the visits is to reconcile the relationship between
Delmar and Susan and the children.” The court also stated that it “trust[ed] Melanie·to make the
proper decision to facilitate reconciliation.” The order specified that visitation may be increased
by agreement of the parties.
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Mother appealed the magistrate’s decision to the Wayne County Court of Common Pleas.
That court affirmed the magistrate’s decision by an order entered on November 5, 2013. Mother
then appealed that order to the Ninth District Court of Appeals in Ohio. In December 2013 –
only a month after the Ohio trial court’s order deciding against her and during the pendency of
her appeal to the Ohio Court of Appeals, mother relocated the children to Prospect, Virginia.
The Langs continued to reside in Ohio. On September 24, 2014, the Ninth District Court of
Appeals in Ohio affirmed the visitation orders of the lower courts.2
At mother’s request, the Prince Edward County Juvenile and Domestic Relations District
Court (“the JDR court”) registered the final Ohio visitation order. Mother then filed a motion to
amend the Ohio order on January 5, 2015. Mother’s motion requested the following changes:
“No specific visitation provisions for the grandparents.” The JDR court appointed Elizabeth
Taylor Carter as guardian ad litem for the children. At a June 17, 2015 hearing, the JDR court
awarded the Langs visitation rights with the children. Specifically, the JDR court ordered that
the first scheduled visitation would take place on June 18, 2015 in Virginia. The August 27,
2015 JDR court order also awarded visitation to the Langs on or around specific holidays.
Pursuant to that order, all subsequent visitations would take place in Ohio – or in any state
through which the parties traveled to facilitate visitation.
Mother appealed the JDR court order to the circuit court. Prior to the final hearing in the
circuit court on December 15, 2015, the parties filed memoranda of law on the issue of the
proper legal standard to be applied to mother’s motion to amend the previous visitation order
2
The grandparents’ successful legal actions in Ohio had little practical effect on their
ability to see the children. During the hearing before the Circuit Court of Prince Edward County
in Virginia on December 15, 2015, mother testified that, other than on a visit to Ohio in June
2015, the Langs had not seen their grandchildren since late 2012 or early 2013. Mother also
testified that the children had had no communication with the Langs during that same time
period, even though the Langs had tried to communicate with their grandchildren.
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from Ohio. The parties all agreed that mother’s relocation of the children to Virginia was a
material change of circumstances. The Langs argued that the proper standard requires a showing
of a material change of circumstances such that a change in visitation would be in the best
interests of the children. Mother asked the circuit court to apply Virginia’s “actual harm”
standard, which would require the grandparents to show that the children would suffer actual
harm if they were denied visitation. The circuit court agreed with the Langs and applied the
material change in circumstances plus the best interests of the children standard.
Upon the conclusion of the evidence, the circuit court found that it was in the best
interests of the children to have set visitation with the Langs. Referring to the unfortunate and
untimely death of father, the circuit court noted how important it will be for the children to
receive the “love and support of their paternal family.” On December 15, 2015, the circuit court
ordered visitation as set forth in the JDR order. The circuit court also found mother to be “in
contempt of court for failure to abide by and comply with the Order of the Prince Edward
Juvenile and Domestic Relations Court dated August 27, 2015.” The basis of the contempt was
mother’s repeated efforts to prevent the grandparents from exercising their visitation rights,
noting that mother “chose to simply ignore” the Langs’ attempts to set up visitation. The circuit
court found that mother had demonstrated an “unwillingness to cooperate in any way, shape or
form to comply” with prior court orders. Despite stating that the circuit court did not have “any
confidence that [mother was] going to comply with any of these orders,” the court suspended any
sanctions for her contempt pending a hearing on January 13, 2016 to determine if mother had
purged herself of the contempt. Finally, the circuit court ordered mother to pay $1,178 in
attorney fees and costs to the Langs.
By order entered January 27, 2016, mother was found to be in contempt of the circuit
court’s prior orders. Based on that finding of contempt, the circuit court ordered mother to report
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to Piedmont Regional Jail on March 25, 2016. The order stated that mother “may purge the
contempt and not be required to report to jail by engaging in the ordered counseling, and fully
encouraging and ensuring the minor children engage in the ordered counseling.” The record
contains no evidence of any further proceedings in the circuit court.
II. ANALYSIS
A. STANDARD OF REVIEW
On appeal, mother’s assignments of error challenge the legal standard the circuit court
applied to her petition to modify visitation. The circuit court’s conclusions as to questions of law
are subject to de novo review. Rusty’s Welding Serv. v. Gibson, 29 Va. App. 119, 127, 510
S.E.2d 255, 259 (1999).
B. PETITION TO MODIFY VISITATION
Mother first asserts that the circuit court “committed reversible error by failing to apply
Virginia’s ‘actual harm’ standard on a motion to amend” the parental grandparents’ visitation
with the children. She also contends that the failure to apply the “actual harm” standard
“violated Appellant/Mother’s constitutionally protected parental rights.” 3
As the United States Supreme Court has observed, the “liberty interest at issue in this
case – the interest of parents in the care, custody, and control of their children – is perhaps the
3
We note that neither party has contested the jurisdiction of Virginia courts to modify the
Ohio visitation order, either in this Court or below. Pursuant to the Uniform Child Custody
Jurisdiction and Enforcement Act (“the UCCJEA”), as adopted in the Code of Virginia, a court
of the Commonwealth may modify a child custody or visitation determination made by a court of
another state if two conditions are met. First, modification is proper if the “Commonwealth is
the home state of the child on the date of the commencement of the proceeding.” See Code
§ 20-146.12(A)(1). Second, Virginia courts can only modify the order of the other state if “[a]
court of the Commonwealth determines that neither a parent of the child, nor the child presently
resides in the other state.” See Code § 20-146.14(2). Based on this statutory authority, Virginia
courts have jurisdiction to modify the Ohio visitation order in this case because the minor
children have resided in Virginia since December 2013 and neither parent now resides in Ohio.
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oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530
U.S. 57, 65 (2000). “The Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and control of their
children.” Id. at 66. In order to protect those rights, mother is correct that Virginia courts have
found that “in a dispute between a fit parent and a non-parent . . . the best-interests test should be
applied only if the trial court first finds ‘an actual harm to the child’s health or welfare without
such visitation.’” Griffin v. Griffin, 41 Va. App. 77, 83, 581 S.E.2d 899, 902 (2003) (quoting
Williams v. Williams, 256 Va. 19, 22, 501 S.E.2d 417, 418 (1998)).
The analysis, however, does not end there because this appeal, unlike the appeals in
Griffin or Troxel, concerns mother’s petition to amend an existing visitation order – not an initial
determination of the parties’ visitation rights with the children. “In matters of custody,
visitation, and related child care issues, the court’s paramount concern is always the best interests
of the child.” Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990). When a
party has filed a petition to modify an existing visitation order, the courts must apply the
Supreme Court’s two-pronged test enunciated in Keel v. Keel, 225 Va. 606, 303 S.E.2d 917
(1983), to determine whether modification of that order is proper. That test asks, “first, has there
been a change in circumstances since the most recent custody award; second, would a change in
custody be in the best interests of the children.” Keel, 225 Va. at 611, 303 S.E.2d at 921.
In Albert v. Ramirez, 45 Va. App. 799, 613 S.E.2d 865 (2005), this Court reviewed
“questions as to who has and what is the appropriate burden of proof in a dispute between a
parent and a stepparent on a petition to modify or terminate a prior final custody and visitation
decree.” Id. at 802, 613 S.E.2d at 866. More specifically, the exact issue before this Court was
whether the trial court, in addressing a change of custody and
visitation petition between the biological mother and the
stepfather, must apply the presumption as defined in Troxel v.
Granville, 530 U.S. 57, 65 (2000), favoring the natural parent over
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a third-party or stepparent, or if the existence of a prior final decree
of a court of competent jurisdiction requires that the court apply
the “material change in circumstance and best interest of the child”
standard in modifying the prior order.
Id. at 802-03, 613 S.E.2d at 866. This Court reversed the circuit court and held that “the circuit
court improperly applied the ‘actual harm’ analysis” because the matter did not involve an initial
determination of custody and visitation with the stepparent. Id. at 802, 613 S.E.2d at 870.
In Albert, the husband appealed the circuit court’s termination of his custody and
visitation rights with his stepdaughter. The husband’s wife was the child’s biological mother,
but the child’s biological father had died prior to the child’s date of birth. The husband and wife
married when the child was three years old. The husband and the child had a close relationship
during the marriage. Id. at 803, 613 S.E.2d at 867. After the parties separated, the juvenile and
domestic relations district court entered a consent decree that granted the parties joint legal and
physical custody of the child. Id. Two years after the entry of the juvenile court order, the wife
filed a petition to modify custody, visitation, and support. When the matter came before the
circuit court, the court applied the “actual harm” standard articulated in Griffin v. Griffin, 41
Va. App. 77, 581 S.E.2d 899 (2003). Pursuant to that test, the circuit court found that the
husband failed to show by clear and convincing evidence that the child would be actually harmed
by the denial of the husband’s request for custody and visitation. The court awarded sole
custody to the wife and awarded no visitation to the husband. Id. at 804, 613 S.E.2d at 867.
This Court reversed the circuit court and held that “in cases involving the modification of
an existing valid custody order, the party seeking the modification bears the burden of proving
that a material change of circumstances has occurred since the entry of the initial order and that a
change in custody would be in the best interests of the child.” Id. at 806-07, 613 S.E.2d at 868
(emphasis added). This Court distinguished the Supreme Court’s decision in Troxel and its own
decision in Griffin by noting that those cases involved an initial custody determination, whereas
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Albert involved the modification of a “judicially sanctioned, existing custody decision.” Id. at
807, 613 S.E.2d at 868. This Court noted that the existing custody decision in Albert was “final
and binding upon the parties and other courts and resolved the issues of custody and visitation
with the child, subject, of course, to any material change of circumstance which would justify a
court modifying the prior holding.” Id. at 807, 613 S.E.2d at 869. Accordingly, this Court held
in Albert that the circuit court erred as a matter of law when it “improperly applied the ‘actual
harm’ analysis to this modification case” and remanded the case to the circuit court “to apply the
proper standard for modification of a custody and visitation decree.” Id. at 809, 613 S.E.2d at
870.4
Our decision in Albert is highly persuasive with regard to the outcome of this case. Both
Albert and this case involve a parent’s petition to modify an existing custody or visitation order.
In both instances, the original order that they sought to modify awarded custody or visitation
rights to a grandparent or stepparent. In both cases, no party questioned the fact that the original
custody and visitation orders were final, valid, and enforceable. The lone distinguishing fact
here is that the prior visitation order in this matter was entered in Ohio, instead of Virginia.
However, mother does not dispute the fact that the Ohio visitation order was the product of a
4
While the initial custody and visitation determination in Albert was a “judicially
sanctioned consent decree,” this Court’s decision in that case certainly did not simply rely on the
existence of a consent decree. This Court also concluded,
By placing the burdens of proof and of going forward with the
evidence upon husband to demonstrate that “actual harm” to the
child would result by his not being granted custody or visitation
rights, the [circuit] court placed the burdens of proof and
production of evidence on the wrong party and applied an incorrect
standard.
Id. at 808, 613 S.E.2d at 869. Likewise, in this case, mother’s request for application of the
“actual harm” standard to her petition to modify the existing visitation order in this matter would
also improperly place the burdens of proof and production of evidence on the grandparents, even
though they had previously been awarded visitation with their grandchildren.
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court of competent jurisdiction. In addition, the record in this case indicates that mother’s direct
appeal of the Ohio visitation order was unsuccessful. Accordingly, the Ohio visitation order was
final and binding upon both the parties, as it conclusively resolved the issue of the Langs’
visitation rights with the children.
Because of the existence of a final, valid, and enforceable order establishing the visitation
rights of the parties, the circuit court was required by our decision in Albert to apply the material
change of circumstances and best interests analysis. In short, in Virginia, when a party seeks to
modify an existing visitation order, that party must demonstrate that (1) there has been a material
change of circumstances since the entry of the previous visitation order and (2) that a change in
visitation would be in the best interests of the children. In this instance, the parties all agreed
that mother’s relocation of the children from Ohio to Virginia was a material change in
circumstances. Therefore, given the relevant case law, the only issue remaining before the
circuit court was whether modification of the visitation as set forth by the existing Ohio visitation
order was in the best interests of the children.5 Consequently, we reject mother’s contention that
the circuit court committed reversible error by failing to apply the “actual harm” standard on a
motion to amend the grandparents’ visitation with the children.
Mother’s argument also raises significant concerns regarding forum shopping. The Ohio
visitation order awarded the grandparents specific visitation rights. Pursuant to Code
§ 20-146.14, Virginia courts only have the authority to modify the Ohio visitation order. In this
5
As the Supreme Court stated in Keel, the best interests of the children prong “is clearly
the most important part of the two-part test. It underscores the importance we place upon
securing the best interests of children whose interests, in the final analysis, must be protected by
the courts.” Keel, 225 Va. at 612, 303 S.E.2d at 921. By focusing on the children’s best
interests when determining whether to allow a change in visitation, the courts can protect
children and can promote a child’s interest in stability, particularly after traumatic events like
divorce or the death of a parent.
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matter, mother’s motion to amend the Ohio order requested the following major changes to
visitation: “No specific visitation provisions for the grandparents.” In light of that specific
request, essentially to eliminate the grandparents’ visitation with the children, mother’s history of
preventing the Langs from exercising their visitation rights, and the fact that mother moved the
children to Virginia while the Ohio matter was still pending on appeal, mother’s request that this
Court apply the “actual harm” standard in this matter appears to be an attempt to use the laws of
Virginia to invalidate the final Ohio visitation order. We cannot endorse such an approach as the
adoption of mother’s legal position would encourage and incentivize forum shopping by parents
who are disappointed by a custody and visitation determination within their own original
jurisdiction.
Finally, mother argues in her second assignment of error that the circuit court violated her
“constitutionally protected parental rights by failing to apply the ‘actual harm’ standard” on her
motion to amend the Ohio visitation order. This specific issue was also addressed by this
Court’s decision in Albert. This Court specifically found, “Requiring the party seeking a
modification of a valid custody or visitation decree to prove a material change of circumstances
justifying the modification is not inconsistent with or anathema to a parent’s constitutional
rights as enunciated in Troxel.” Albert, 45 Va. App. at 809, 613 S.E.2d at 870 (emphasis
added). Thus, this Court has previously determined that the application of the material change in
circumstances and the best interest of the children standard on a motion to amend a prior
visitation order does not infringe upon the a party’s constitutionally protected parental rights.
Therefore, we find that mother’s second assignment of error is also without merit.6
6
Even though father has been deceased since May 2011, both of mother’s assignments of
error now before this Court contend that the “actual harm” standard should be applied where
“neither biological parent supports the third party visitation.” We find that such a statement is
certainly inappropriate and quite disingenuous, under these circumstances, where, as here, the
other biological parent has actually predeceased any court order for visitation with the
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III. CONCLUSION
For the foregoing reasons, we find that the circuit court did not err when it applied the
material change in circumstances plus the best interests of the children standard to mother’s
motion to amend the final Ohio court order granting the Langs visitation with their
grandchildren. We also find that the application of that legal standard did not violate mother’s
constitutionally protected parental rights. Consequently, we hold that the circuit court did not err
when it ordered that the Langs continue to have visitation with their grandchildren, as originally
ordered by the Ohio courts. Accordingly, we affirm the judgment of the circuit court.
Affirmed.
grandparents. In addition, there is clearly nothing in the record to support a conclusion that
father would not support his own parents’ efforts to have visitation with his children.
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